TMI Blog2019 (2) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant to note that in that case, the original promoters had divested 42.36% of the total outstanding share capital, out of which a substantial part was towards their respective spouses. The Court noted that 28.248% of the shares transferred by the promoters were held by non-family members. Indisputably, the petitioner’s case is on a better footing as only 10.23% of the shareholding is held by persons other than the original promoters. The demand for unearned increase by the respondent is unsustainable, as there is no transfer of the property in question - impugned communication is, accordingly, set aside - petition allowed - decided in favor of appellant. - W.P.(C) 6231/2013 and CM APPL. 9164/2017 - - - Dated:- 22-2-2019 - MR. VIBH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm. 3.3 In view of the change in the constitution of the lessee (from a firm to a company), the company applied for waiver of the unearned increase in respect of the plot in question. The said request was acceded to and the levy of unearned increase was waived by a communication dated 11.05.1973. Thereafter, sometime in January 1974, a supplementary lease deed was also executed in favour of the company. 3.4 In the year 1988, the turnover of the company exceeded ₹25 crores and by virtue of Section 43A of the Companies Act, 1956 (as was in force), the company became a deemed public company. Accordingly, its name was subsequently changed from Control and Switchgear Co. Private Limited to Control and Switchgear Limited. 4. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h its application, the same was not taken up in an expeditious manner. On or about 28.09.2012, the company received a communication from respondent no.2, calling upon it to pay a sum of ₹46,80,733/- as surcharge. Admittedly, the said surcharge is payable only if the original allottee had parted with the possession of the property, which was not so in this case. Aggrieved by the same, the company preferred this petition. 7. While the petition is pending, the company received the impugned letter dated 11.10.2013 whereby the demand of surcharge was withdrawn. However, a fresh demand for 50% unearned increase was raised. Aggrieved by the same, the company sought to amend the present petition to impugn the said letter. 8. The princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was rejected by a judgment dated 07.11.2014. In its decision, the Division Bench had also referred to the decision of the Constitution Bench of the Supreme Court in Mrs. Bacha F. Guzdar v. Commissioner of Income Tax: (1955) AIR SC 74 , wherein the Supreme Court had authoritatively held that the identity of the company was not the same as that of its shareholders and, consequently, the dividends declared by the company out of agricultural income in the company s hands were not in the nature of agricultural income in the hands of its shareholders. 11. In view of the above settled law, the demand for unearned increase by the respondent is unsustainable, as there is no transfer of the property in question. The impugned commun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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